'ARK.] 'PETTY . 2).. OZARK' GRKER COMPANY. 595 " PETTY . 27." ' OZARK GROdER COMPANY... 4-3010. Opinion delivered June 12, 1933. BILLS A ND . NOTES—PRESENTATION OF C H EC K—NEGL IGENCE.— Whether a pkiiree was negligent in'not preSenting a check o::•r payment within 'three daYs after 'it was' given *to' the toayee's agent by the drawer, ;with. instructions to cash , it inimediately; was .under the circumstifices; the payee being in -a distant , city and the agent having no authority to indorse the check,._ held -for ,the jury. BILLS AND NOTES- PRE SE IV TAIO 'elIEGIC—DiLIGENcE.-2Whether reitson'able diligence l required check t) be presented on the neXt • :.day after.it Was received held for the jury. • : 3., - BILLS AND, iNDTES—pRESEN TATION OF CHECK-IN sTRucTIoN.- n • instruction that a check should be presented the day after it was given where the person receiving it and the bank are in the sarbe toWn was piopeily reiused where the cheek was received by tbe payee's agent having- no authority to indorse it and the check was sent to payee in a city, Other, than, that of the .drawee bank. 4. APPEAL AND ERROR CONCLUSIVENESS • OF JURY'S FI.NDING. A jury's finding On the issue whether a payee was negligent in presenting a check 'for'Payrnent, fairlk' sUbmitted by the .cmirt's ingtrUetions, held concluive. Appeal fromiBenton Circuit -Court; John S.-Combs, Judge ; affirmed. . ! 1 - ..! ;. . 2! • •• WilliâniS`,& TT7illiãni, -for 'appellanf. Kcirl Greqn f haw, for appellee. . . MEHAFFY, J.' The Ozark Grocer Company, a corporation :with its .principal place •of bu . siness .in Fayette-ville, Arkansas, and; a _branch house . at Silopm Springs,, Arkansas-, between September 17th ,and .0ctober sold to the appellant, R. IVI..Petty, merchandise ;the total amount of which,Was.$921.01. . , . . On :October 27, '1931, the apPellant gaVe to Gene Trahin,- a representative -of the Ozark Grocer Company, tWo checks, payable to-the Ozark • GroceiTompany, for the sum of $921.01. ,One check was-drawn- on the Producers' -State Bank, Of.-.Siloam Springs, for $308.99,- and the other check' -Was-.drawn on the Hutchings First N-a-tional Bank of Siloam Springs for -$612.02.
_596 _ PETTY -21.-04ARK GROCER COMPANY. [187---- The cheek on Abe Producers' State Bank was paid, but the check drawn on the Hutchings First National Bank was not paid. It -Was given on October 27, and the Hutchings bank was insolvent and closed on October 30, 1931: .:Thereafter,..in May, 1932, the appellee began : this suit in the Benton ; Circuit ,Court, alleging that the .mer-. chandise sold to appellant was $921:01,. and that appellant :had paid thereon $308.99, leaving a- balance due of $612.02: ,..:The appellant filed answer„ admitting the purehase of merchandise, and the amount, thereof, and alleging that Gene Trahin.was the agent and manager of -appel-lee, and that . appellant expressly told hinr that it did not make any " differenee about the'$308.99 -on. the Producers' State . Bank; but that he wanted . the check on the Hutch-ings First : National Bank cashed immediately. It was also alleged- in the answer that -the -appellee did not cash tbe -check as Trahin was instructed -to do at onee, bufmailed the cbeck . to Fayetteville for deposit ; that the • appellee, being notified that 'appellant desired the check to be cashed at once, and under the circum-- stances. surtonnding the!.banks- of Siloam Springs, the appellee was negligent in not cashing the check as instructed; that at the time. the check -was : given the: bank was open, and appellee . was told to cash it at once, and agreed to do so, being"hotified br aPpellant tht he de-sired-. said money .be drawn from said bank. It is then alleged that the bank closed on October 30th, and that, if appellee had used. due diligence under appellarit's instructions, it would not have suffered loss. He alleges, that the appellee carelessly 'and negligently refused and failed to cash the : check,. and 'held the same until the failure of the bank, and, tbat by reason thereof the appellee is not entitled to recover because the losS was occasioned solely by its negligence. The appellant's evidence..tended to show that he told Trahin, the representative.of the appellee, he wanted him to get the check cashed immediately. This testimony was contradicted by 'the agent. The undisputed evidence
ARK.] PETTY v. -OZARK GROCER COMPANY. 597 shows that Trahin had no authority to indorse the check. The undisputed evidence, also shows that appellant's children had money deposited in the Hutchings National Bank, and that appellant had approximately $8if of his own money left, and he made no 'effort to -withdi-aw any of this before the bank closed. The only question in the case is whethef the appel-lee was guilty of negligenée in presenting- the check to • the 'Hutchings First National Bank for .payment • The appellant'S 'first contention is that the-evidence did . not -Warrant the'finding of the verdict. It was a cites-tion of kact as tO whether the appellee waS guiltY:of -negligence, And this was submitted to the jury under proper instructions, apd the jury found against appellant ' Tbe next contention is that tbe court erred in refusing to instruct the jury in the three instructions offered by the appellant, and refused by the court. These instructions are as follows: "No. 1. The court instructs the 'jury that a check must be presented fOr PaYment within a: reasonable time, and what is a reasOnable time .will depend uPon the cir-cults: lances in . each ase. In the absence of special cumstances excusing delay, , the , reaSonable' time for presenting a check, I ,, Then the person receiving the same, and the. bank on which it is drawn are in tbe same 'Mace is hot later than the . 'next businesS day after it is ye-. ceived, and when , they are . in different places, reasonable-diligence reqUires the check to be forwarded . to the Place of payment not later than the next business day • after it is received by tbe payee, and presented not later than the day after it is thus received. Inexcusable delay may discharge the' drawer frorn: liability if he is injured by the delay." • • "No. 2. You are instructed that it was the duty of the plaintiff on the next day after receiving the check to forward the Check for presentation -to a• suitable • agent in the town where bank is • located. upon :which the check Was drawn, and if you find that the plaintiff, failed to do So, and that, if plaintiff had done so, that said check would have been paid, and that, if plaintiff's failure to
-598 PETTY V: OZARK- GROCER COMPANY. [187_ .do so, and the defendant 'was injured, thereby, you will find for the defendant:" • - • No, .3. •:Yorf are instructed • that,--if you find that Gene Trahin was the •agent.of the plaintiff, that knowledge:of the agent is knowledge of the- principal." • The first instruction, .among other things, tells the jury .that. a: reasonable ,time for presenting a - check, when .the person receiving . the same . and the bank on which it is drawn are in, the :same place,- is not later than .the next -business day: after . it. is receiyed, . and when they are in different places, yeasonable diligence . requires .the check to be forwarded to . the place of .payment. not later .than the -next business „day ufter it s re;.eived by the payee. ... , . . . • . Section 7952 of Crawford .&• . M . oses' bigest reads as follows : "A. check must be Presented for payment within a . reasonable time afteyits iSsue or . the drawer will be discharged' from liability thereon to . the extent . of the loss caused by the delay." .SectiOn 7763 of :Crawford . & MoSes' bigest -provides In determininv what is a 'reaso . nable • , t • ime'. Or . an Un- TeasOnable tirne,' regard is '4; be had to the natUre of the inStr . in . neht,. the 'usage Of trad . e;or buSiness, if any, *ith respect to such , instruments: and- the " facts Of ' th _ e- pa .. r- ticul . ar C . a , se." • • • - . • . Bnt ihese facts are to.he determined by the jury, and .not, by the court: The .appellant's defense is based wholly on negligence, and whether -the .aPpellee was negligent was a question of fact to be determined . by the.jury. It would have been improper for the court to have told the jiiry that•reasonable diligence required the check to be presented on. the day. 'after it was given. It was not a question of law for the court, but a question , . of fact for the jury.. - There is -a:nether reason,, however, why the instrue-tion was properly-refused •in this case: The instruction Says that when: aperson receiving the check and the bank are in the -sathe to*n, it shall be presented for payment on the following day. The PerSon receiving this .check was nbt the payee, and had no authority to -indorse the
check. The:payee received the check at Fayetteville, and it was drawn on a bank in a Aifferent town. .The one-receiving. the check in this instance properly sent it to the .payee,• and the payee •sent the. check immediately to the .Federal Reserve Bank in St. Louis, which . was .the -usual custom in handling checks drawn on banks outside of Fayetteville. , Instructions numbers 2 and 3 requested by appellant. were properly .refused , for the rea g on that . whether the appellee cxerciSed diligence was a question Of fact :fo . r . the jury, and not a question of -law for . the coUrt. • The coUrt instructed the jury at length, and the :in:- struciions given by the cOurt fairly snbmitted the only issue in the cuse to the jury, and the jury's finding is conclusive here. The iudgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.